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Restitution of Holocaust Era Insurance Assets Success or Failure

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					      Restitution of Holocaust-Era Insurance Assets:
                    Success or Failure?

                        Adrienne Scholz∗

                        I. INTRODUCTION

    “Please do not allow the insurance companies to retain
 what belongs to us.”1

     This simple yet eloquent plea for justice was heard at a
recent United States congressional committee hearing.2 The
speaker, Israel Arbeiter, was born in Poland.3 In the middle
of a cold February night in 1941, the Gestapo, the secret
police force of the German Nazi regime, dragged Mr.
Arbeiter and his family from their home.4 They were forced
to abandon everything they had ever owned, and then were
shipped to concentration camps where Mr. Arbieter’s parents
and two brothers were subsequently murdered.5 For the past
fifty-six years, Mr. Arbiter has been trying unsuccessfully to
collect on the insurance policies of his slain family.6
     This paper addresses the decades-long struggle of
hundreds of thousands of Holocaust survivors and the heirs
of victims, like Mr. Arbeiter, who have been continuously

        ∗
           B.A., cum laude, Columbia University (1995); J.D., summa
cum laude, Whittier Law School (2003). Ms. Scholz concentrates in
Jewish Law, Holocaust & Genocide Law, and Religion & Constitutional
Law.
         1
           Melissa B. Robinson, Congressmen Clash Over Holocaust
Insurance Claims, INTERNET JERUSALEM POST, Nov. 9, 2001, at
http://www.jpost.com/Editions/2001/11/09/LatestNews/LatestNews.3784
8.html.
         2
           Id.
         3
           Id.
         4
           Id.
         5
           Id.
         6
           Id.


                               297
298             NEW ENG. J. INT’L & COMP. L.           [Vol. 9:1


frustrated in their attempts to claim insurance assets held by
themselves or family members prior to and during the second
world war. Part II will address the history and development
of the problem, and the numerous legal and bureaucratic
obstacles these claimants have faced over the years. Parts
III.A through III.E will survey the current restitution efforts
and analyze their processes and results. Part III.F will
compare the various efforts, providing some insight into their
relative effectiveness. Part IV concludes by answering one
simple question: has Holocaust insurance restitution thus far
been a success or a failure?

                II. HISTORICAL PERSPECTIVE

    Rabbi Steven Einstein describes the Holocaust
succinctly: “Before World War II, approximately 8,700,000
Jews lived in Europe. By war’s end, some 6,000,000 of them
had been murdered. That is the end of the story.”7 For the
heirs and beneficiaries of those six million, however, the
story was only just beginning.

      A. The Scope of the Problem and Early Restitution
         Efforts

    In order to understand the current efforts being made to
restore Holocaust-era insurance assets to their rightful
owners, it is helpful to first understand the background and
magnitude of the problem. This section will provide a broad
overview of the situation and its history, as a foundation for
the analysis of Part III.




         7
         STEVEN J. EINSTEIN & LYDIA KUKOFF, EVERY PERSON’S
GUIDE TO JUDAISM 71 (1989).
2003]       HOLOCAUST INSURANCE RESTITUTION                        299



    1. Prevalence of Insurance Policies in Pre-War Jewish
       Communities of Europe

    Insurance of various types was perhaps the most popular
form of investment amongst European Jews before the
Second World War.8 Often used as a form of retirement
planning amongst Jews in even the poorest areas, insurance
salesmen would go door-to-door collecting weekly premium
payments.9 Jewish insurance consumers in the pre-war
period ranged from successful attorneys, bankers, and
doctors in Germany10 to the impoverished peasantry of the
Ukrainian shtetls.11 Policies were issued covering everything
from life, property, and business assets to vehicles, art, and
future dowries for holders’ daughters.12 Due to this broad-
based popularity, it is estimated that up to one third of
registered Holocaust survivors – not including heirs of those
who did not survive – may have unpaid insurance claims
dating from the Nazi Era.13 These policies were written by
more than one hundred and fifty companies in eighteen

        8
            Insurance and the Holocaust, ECONOMIST (U.S. ed.), Mar. 15,
1997, at 73 [hereinafter Insurance and the Holocaust].
          9
            Id.
          10
             LeAnn Spencer, Quest for Holocaust Insurance Benefits:
Survivors, Heirs, Testify About Their Unpaid Claims, CHI. TRIB., Nov.
11, 1997, at N1.
          11
             Insurance and the Holocaust, supra note 8, at 73 (Shtetls
were small rural communities to which Jews were often restricted in
many areas of Eastern Europe). See EINSTEIN & KOKOFF, supra note 7, at
71-72.
          12
             See Off. Wash. St. Ins. Commr., Chicago-Area Residents
Invited to Testify Nov. 10 About Holocaust-Related Insurance Claims,
PR NEWSWIRE, Oct. 16, 1997 [hereinafter Chicago Residents Testify];
See also Spencer, supra note 10, at N1.
          13
             Fla. Dept. Ins., Florida Department of Insurance Panel To
Hear From Florida Holocaust Survivors; Some Allege Proceeds Of
Insurance Policies From Victims Of Nazi Persecution Enriched War
Criminals, PR NEWSWIRE, Nov. 19, 1997.
300                NEW ENG. J. INT’L & COMP. L.                   [Vol. 9:1


countries, and were payable in twenty-one different
currencies.14

      2. Intentional Marketing Of Insurance To Jews After
         1933

    Many Jewish customers, fearful of the Nazis,
intentionally sought to purchase policies from insurers
outside of Germany, hoping to provide greater security for
their families.15 Some insurers, such as Italian-based
Assicurizioni Generali, encouraged this practice by offering
policies payable in United States dollars, or by expressly
providing for continued coverage in the event of emigration
from Europe.16 Generali, because it had been founded by
Jews and because of its location in the former Austro-
Hungarian Empire (headquartered in Treiste, Italy), was
particularly successful in marketing to Jews throughout
Poland, Czechoslovakia, Yugoslavia, and Hungary17 – the
same areas which were hit hardest by the Nazi’s “Final
Solution” policy of extermination.18 Other companies appear
to have been intentionally collaborating with the Nazi
regime, allegedly having “went so far as to market life
insurance policies to Jews in Belgium and other [already]
occupied nations, knowing full well that these people would



         14
             Nicole Sterghos Brochu, Holocaust Compensation Failing
Many, SUN-SENTINEL (Ft. Lauderdale), Nov. 9, 2001, at A4.
          15
             Spencer, supra note 10, at N1.
          16
             Bet Tzedek Leg. Servs., Report By International Commission
that 75% of Holocaust Insurance Claims Are Denied Sparks California
Class-Action Lawsuit, PR NEWSWIRE, May 24, 2000.
          17
             Insurance and the Holocaust, supra note 8, at 73.
          18
             LUCY S. DAWIDOWICZ, THE WAR AGAINST THE JEWS 1933-
1945 402 (1975) (table of estimated number of Jews killed showing
figures in these four countries at 3,631,000 – nearly two-thirds of the six
million total of the Holocaust).
2003]        HOLOCAUST INSURANCE RESTITUTION                       301



later be killed.”19 Special company business forms have been
unearthed that suggest these insurers then let the Nazis
collect from the policies of the very people they murdered.20
Some insurers, in an effort to avoid their obligations, have
actually told claimants that their policies were paid to Nazi
leaders.21

    3. Claims Made By Survivors in the Aftermath of
       World War II

    The losses of insurance assets during the Nazi period
were never a secret, “[b]ut in the first few years after
liberation, they were simply swept aside and forgotten.”22
Insurers rejecting claims by survivors and heirs immediately
following the war gave a wide variety of rationales for their
refusal to pay. Among the reasons given were the heirs’ and
beneficiaries’ inability to produce policy documents, the
heirs’ inability to prove their relationship to the insured, and
the destruction of company records during the war.23 Some
insurers refused claims when heirs could not produce a death
certificate for policyholders killed in concentration camps, or
because premium payments had ceased when the
policyholder was deported to Auschwitz, Dachau, or other
concentration camps.24 Still others, as previously noted,
refused to pay because payment had already been made to
Nazi officials of the Third Reich Government.25


        19
            Henry Weinstein, Insurance Chief to Push Nazi-Era Cases,
L.A. TIMES, Nov. 25, 1997, at A3.
         20
            Next Step for Holocaust Insurance Probe, UNITED PRESS
INTL. (Olympia, Wash.), Dec. 12, 1997.
         21
            Spencer, supra note 10, at N1.
         22
            Id.
         23
            Id.
         24
            Insurance and the Holocaust, supra note 8, at 73.
         25
            See discussion, supra note 20.
302                NEW ENG. J. INT’L & COMP. L.                    [Vol. 9:1


    Complicating the issue was the fact that many heirs,
(having been young children at the time, or not even
immediate family) only remembered that the deceased had
carried insurance, but had no information on which company
might have held the policy.26 Thus, they did not even know
from whom to claim their missing assets.
    Even those companies that honored claims frequently
paid beneficiaries paltry sums on the pretext that the
policies’ values had been decreased by post-war inflation.27
For example, one French-held policy had been paid regularly
by the insured for eighteen years, yet heirs were reimbursed
only twenty-six centimes in 1945 – “about the price of a
metro ticket.”28
    According to Jewish organizations, there were lawsuits
regarding wartime insurance policies brought in Austria as
early as the 1950s.29 War historians in Holland estimate
thirty to fifty similar cases brought in their courts during the
same period.30 Little is known about the Austrian suits,
except that they proved unsuccessful.31 Although the Dutch
suits resulted in the rather unique position of Holland as the
only European country in which most insurance policies
were actually reclaimed,32 the fact remains that the vast
majority of insurance assets from the rest of Europe were
never returned to their rightful owners.

      4. The Effect of Communism in Eastern Europe

    Beginning with the division of Germany immediately
following the war, Eastern Europe was quickly taken over by

         26
            Spencer, supra note 10, at N1.
         27
            Insurance and the Holocaust, supra note 8, at 73.
         28
            Id.
         29
            Id.
         30
            Id.
         31
            Id.
         32
            See discussion infra Part III.C.2, at notes 105-106.
2003]        HOLOCAUST INSURANCE RESTITUTION                          303



communist forces either directly or indirectly controlled by
the Soviet Union.33 As a result, most of the Eastern Bloc
branches of European insurers were taken over by the
emergent communist states where they were located,
including those of Hungary, Poland, Czechoslovakia,
Ukraine, Lithuania, and others.34 Due to the active promotion
of insurance to Jews in that region by Generali, and to the
demographics of those murdered in camps,35 this process
affected an enormous number of contested claims.36 Generali
and other insurers began to insist that agreements made with
the newly formed communist governments had shifted
responsibility for outstanding policies to the states
involved.37 Since the communist governments did not allow
access by Westerners to the records of the now state-owned
insurers for decades, it has only recently been discovered
that those states’ governments had financially recompensed
the insurers at the time of takeover and thus now insist that
the original companies are still responsible.38 Whatever the
merits of these competing assertions may be, the argument
overlooks yet another complication. According to survivors,
many of the Eastern European policies, although issued by a
local branch, were actually held by, and premiums were
submitted to, the main branches of the insurers in Western



        33
            The History Channel, The Cold War: 1945-53, available at
http://www.thehistorychannel.co.uk/classroom/gcse/cold_war1.htm
(accessed Nov. 13, 2001).
         34
            See generally Insurance and the Holocaust, supra note 8, at
73; Spencer, supra note 10, at N1; Weinstein, supra note 19, at A3.
         35
            See discussion, supra notes 17-18.
         36
            See DAWIDOWICZ, supra note 18, at 402; Insurance and the
Holocaust, supra note 8, at 73.
         37
            See Insurance and the Holocaust, supra note 8, at 73;
Spencer, supra note 10, at N1; Weinstein, supra note 11, at A3.
         38
            Insurance and the Holocaust, supra note 8, at 73.
304               NEW ENG. J. INT’L & COMP. L.                [Vol. 9:1


Europe, thus never having been under communist control at
all.39
     With the opening of the former Soviet Union and other
Eastern Bloc states to Western officials, many records
became accessible which had not previously been available
to Holocaust survivors seeking to prove ownership of assets
lost during the war.40 This development provided extensive
assistance to the many refugees from formerly communist
states seeking to authenticate their claims to missing assets
of all kinds.41

      B. Renewed Restitution Efforts in the 1990s

    The 1993 release of Steven Spielberg’s acclaimed film
“Schindler’s List”42 is credited by many for renewing public
interest in the now half-century-old search for justice.43 This
renewed interest, coupled with the newly available records of
the former Soviet Union, sparked a worldwide drive for
Holocaust restitution beginning in the mid-1990s.44




         39
            Weinstein, supra note 19, at A3.
         40
            U.S. Dept. of State, U.S. and Allied Efforts to Recover and
Restore Gold and Other Assets Stolen or Hidden by Germany During
World War II: Forward and Executive Summary to the Preliminary Study
(May 7, 1997), available at http://www.ita.doc.gov/media/assets1.htm
(accessed Nov. 13, 2001).
         41
            Chicago Residents Testify, supra note 12.
         42
            SCHINDLER’S LIST (Universal 1993) (Dramatizing the life of
German businessman Oskar Schindler, who is credited with rescuing
several thousand of his company’s Jewish employees from certain death
at the Auschwitz concentration camp).
         43
            Holocaust Insurance Claims Tackled, THE TORONTO STAR,
Feb. 26, 2000 [ hereinafter TORONTO STAR].
         44
            Id.
2003]        HOLOCAUST INSURANCE RESTITUTION                         305



    1. The Interest of the United States in Procuring
       Restitution for Holocaust Survivors

    With renewed interest in Holocaust restitution came the
increasing realization that America has a significant stake in
the outcome of such restitution claims. Of an estimated
700,000 survivors of the Holocaust still living,45 there are
believed to be at least 150,000 residing in the United
States.46 In addition, many of the survivors are extremely
elderly (the median age of survivors as of 1998 was 82 ½),47
and thus subject to the typical medical and other expenses
associated with advancing age. With industry analysts
estimating the total insurance claims at somewhere between
$1 billion and $4 billion,48 the estimate of the World Jewish
Congress falls directly in the median range at $2.5 billion.49
With numbers like these, public officials and humanitarian
groups across the country have understandably become
increasingly involved in this issue.50

    2. Restitution Efforts for other Holocaust-Era Assets

    Holocaust survivors have claimed a plethora of missing
assets, most notably funds held by various European banks
and restitution for slave labor performed for German

        45
             German Companies Withhold Payments, SUN-SENTINEL (Fort
Lauderdale), June 11, 1999, at 3D.
          46
             Sam Stanton & Denny Walsh, Insurance Companies Attack
Holocaust Law, SCRIPPS HOWARD NEWS SERV., Apr. 25, 2000.
          47
             John J. Goldman, Insurer OK’s $100 Million Holocaust
Payoff, L.A. TIMES, Aug. 20, 1998, at A17.
          48
             Insurers Paid Average of $10,000 to Holocaust Survivors,
Group Says, THE TORONTO STAR, Feb. 24, 2000.
          49
             Insurance and the Holocaust: Eastern Blockage, ECONOMIST,
Sept. 5, 1998, at 68 [hereinafter Eastern Blockage].
          50
             See generally Insurance and the Holocaust, supra note 8, at
73; Spencer, supra note 10, at N1; Weinstein, supra note 19, at A3.
306               NEW ENG. J. INT’L & COMP. L.                [Vol. 9:1


companies during the war period. In a New York federal
class-action suit, two Swiss banks agreed to settle out-of-
court for $1.25 billion in 1998.51 Bank Austria and Barclays’
(of England) settled in 1999 for $40 million and $3.6
million, respectively.52 There were numerous slave-labor
lawsuits which were first consolidated, and then settled for
approximately $5 billion in late 1999,53 bringing settlements
for these two areas to a total of $6.3 billion. These numbers
are substantially higher than the results of all the attempts at
insurance restitution combined.54

                    III. AUTHOR’S ANALYSIS

     The renewed drive for insurance restitution has spanned
the entire gamut of available legal tools. Lawyers and
lawmakers have addressed the problem using class-action
litigation,55 local and national legislation,56 national and
international negotiating processes,57 and finally, individual
litigation.58 The following discussion will summarize these
various attempts, analyzing and comparing their respective
strengths and weaknesses.

      A. Litigation in New York State

     The first major step taken in the current American
restitution effort was a 1997 class-action suit filed in United

         51
           Henry Weinstein, $4.2 Million Settlement Uncollected, L.A.
TIMES, May 17, 2000, at A3.
        52
           Michael J. Bazyler, Nuremberg in America: Litigating the
Holocaust in United States Courts, 34 U. RICH. L. REV. 1, 248, 239-40
(2000).
        53
           Id. at 248.
        54
           See discussion infra Part III.E, at notes 196-198.
        55
           See discussion infra Parts III.A and III.D.
        56
           See discussion infra Part III.B.
        57
           See discussion infra Part III.C.
        58
           See discussion infra Part III.D.
2003]        HOLOCAUST INSURANCE RESTITUTION                        307



States District Court in New York against Assicurazioni
Generali and numerous other European insurance
companies.59 At the time, plaintiff’s attorneys Anderson, Kill
& Olick P.C. estimated that the number of claimants could
exceed 10,000, with average claims in excess of $75,000.60
The New York suit generated a flurry of settlement
negotiations, apparently stalling the case throughout 1998
and 1999.61 Although these negotiations, along with pressure
exerted by various state insurance commissioners, eventually
resulted in the creation of an international commission to
address the problem,62 no acceptable settlement has yet been
reached with the plaintiffs of the class action.
    After more than three years of unsuccessful negotiations,
the defendants attacked the jurisdiction of the court. In 2000,
the court granted the motions of two of the defendants, UAP-
Vie of France and Der Anker Allgemeine Versicherungs AG
of Austria, to dismiss for lack of personal jurisdiction.63 Less
than a week after the Der Anker dismissal, the court thwarted
a jurisdictional attack by eighteen of the remaining twenty-
two defendants by granting the plaintiffs leave to amend
their complaint.64
    Nevertheless, intervening events again overran the case.
In the fall of 2000, negotiations between the United States,
        59
            Cornell v. Assicurazioni Generali S.p.A., 97 Civ. 2262
(S.D.N.Y. 1997).
         60
            Marilyn Henry, Holocaust Survivors Sue Generali in U.S.
Class Action, JERUSALEM POST, Apr. 1, 1997, at 12.
         61
            See Meg Fletcher, Holocaust Settlement Collapses, BUS. INS.,
Sept. 28, 1998, at 2; John Authers, Deal Sought Over Holocaust
Insurance, FIN. TIMES (London), May 5, 1999, at 3.
         62
            See discussion infra notes 122-124.
         63
            Cornell v. Assicurazioni Generali S.p.A., 2000 U.S. Dist.
LEXIS 2922 (S.D.N.Y. Mar. 16, 2000) (dismissing UAP-Vie); Cornell v.
Assicurazioni Generali S.p.A., 2000 U.S. Dist. LEXIS 11004 (S.D.N.Y.
Aug. 7, 2000) (dismissing Der Anker).
         64
            Cornell v. Assicurazioni Generali S.p.A., 2000 U.S. Dist.
LEXIS 11991 (S.D.N..Y. Aug. 22, 2000).
308               NEW ENG. J. INT’L & COMP. L.                 [Vol. 9:1


Germany, and several major Jewish organizations resulted in
a series of settlements known as the “Berlin Agreements.”65
Among other things,66 these agreements stipulated that all
“German” companies would henceforth be immune from
Holocaust-related litigation in the United States.67 Due to the
Court’s interpretation of the term “German” companies in
these agreements as including all those at one time operating
within the Third Reich, the New York plaintiffs were forced
to relinquish their claim against eighteen defendants in their
case.68 The court did, however, refuse the motion of the four
remaining defendants (three of them Swiss companies), who
also claimed immunity as “German” companies.69
    With only four remaining defendants (of an original
twenty-five), the case appears to have stalled. The loss of the
French defendant UAP-Vie was a major blow to the
plaintiffs, especially since it, like the Swiss defendants,
would not qualify as a “German” company by the analysis of
the New York court (Der Anker, however, would have been
considered “German”).70 The remaining four companies
appear to be involved in negotiations with the International
Commission on Holocaust Era Insurance Claims
(ICHEIC).71 If such negotiations result in an agreement, the
case will likely be dismissed, leaving its plaintiffs little
option but to submit to ICHEIC’s private and unregulated
claims process.72 Thus, it is questionable at this point as to
whether this four-year (and counting) suit, when finished,
will have had any effect beyond raising public awareness of
the specific issue of Holocaust insurance reparations.
        65
          Cornell v. Assicurazioni Generali S.p.A., 2000 U.S. Dist.
LEXIS 18193 **4-5 (S.D.N.Y. Dec. 19, 2000).
       66
          See discussion infra Part III.C(4), at notes 151-159.
       67
          Cornell, 2000 U.S. Dist. LEXIS 18193 at **4-5.
       68
          Id. at *4.
       69
          Id. at *10.
       70
          Id. at **6-10.
       71
          See discussion infra Part III.C(3), at notes 122-150.
       72
          See discussion infra Part III.C(3), at notes 122-150.
2003]        HOLOCAUST INSURANCE RESTITUTION                        309



    B. Legislative Efforts

    Triggered in part by the publicity surrounding the New
York class-action suit, massive lobbying by Washington
State Insurance Commissioner Deborah Senn and others
resulted in the Holocaust Assets Commission Act of 1998.73
The Holocaust Act was passed by Congress for a number of
purposes, one of which was to require states and their
insurance commissioners to “conduct a thorough study and
develop a historical record of” certain assets, including
insurance policies, from the Holocaust Era.74
    In response to the Holocaust Act, legislation was
proposed in at least twenty-six states setting disclosure of
Holocaust era information as a requirement for maintaining
business licensure for insurance companies operating within
the state.75 The proposed legislation would require all
companies in any way affiliated, as a subsidiary or
otherwise, with any European company known to have been
engaged in the insurance business during the period of 1920-
1945 to disclose all information related to any unpaid
policies from that period, and to timely process and pay any
claims made on such policies.76 The first states to pass these


        73
             22 U.S.C. § 1621 (1998). See also Deborah Senn, Prepared
Testimony of Deborah Senn, Washington State Insurance Commissioner,
Before the House Banking and Financial Services Committee: Report on
the National Association of Insurance Commissioners Holocaust
Insurance Issues Working Group, FED. NEWS SERV., Feb. 12, 1998.
          74
             Gerling Global Reins. Corp. v. Low, 240 F.3d 739, 747 (9th
Cir. 2001).
          75
             Global Panel Set Up to Settle Holocaust Insurance Claims,
STAR TRIBUNE (Minneapolis), Apr. 9, 1998, at 10A.
          76
             See generally N.Y. Governor Signs Holocaust-Era Insurance
Bill, BESTWIRE (A.M. Best Co., Inc.), July 9, 1998; Henry Weinstein, 2
Bills to Help Holocaust Victims With Insurance Issues Are Signed, L.A.
TIMES, Sept. 30, 1998, at A3; Washington State Legislature Passes
Holocaust Claims Bill, FED. & ST. INS. WEEK, Apr. 13, 1999.
310               NEW ENG. J. INT’L & COMP. L.                [Vol. 9:1


regulations were New York, California, Washington, and
Florida.77
    Within months, Generali and other European insurers
had challenged these statutes on constitutional grounds. In
response to a series of subpoenas served on the insurers by
the Florida State Insurance Commissioner under the new
law, the first case, Gerling Global Reins. Corp. v. Nelson,
was brought in the Northern District of Florida.78 The
plaintiff insurers challenged the jurisdiction of the Florida
subpoenas with respect to the insurers’ responsibility for
their German affiliates, based on the “minimum contacts”
analysis of the due process requirement.79 The court agreed
that the statute as written purported to allow the insurance
commission to enforce “transactions entered in Germany
between German parties having no connection with Florida,”
and thus was an unconstitutional overreaching of Florida
jurisdiction.80
    Gerling Global also challenged subpoenas served on it
under California’s Holocaust Victim Insurance Relief Act
(HVIRA).81 A preliminary injunction was ordered by the
United States District Court in Sacramento, based on the
possibility that the statute might violate the Commerce
Clause and/or interfere with the federal government’s foreign
affairs power.82 On interlocutory appeal, the Ninth Circuit
overturned the district court’s decision with respect to the
Commerce Clause because unlike the Florida statute, the
California law required only the production of information,

        77
            Washington Legislature OK’s Holocaust Lawsuits, BEST’S
REV.: LIFE-HEALTH INS. ED. (A.M. Best Co., Inc.), May 1, 1999, at 17.
         78
            123 F. Supp. 2d 1298, 1300 (N.D. Fla. 2000).
         79
            Id. at 1300-01.
         80
            Id. at 1299.
         81
            Kenneth R. Weiss, Judge Blocks Holocaust Victims Act, L.A.
TIMES, June 10, 2000, at A1.
         82
            Gerling Global Reins. Corp. v. Quackenbush, 2000 U.S. Dist.
LEXIS 8815, at *15 (E.D. Cal. June 9, 2000).
2003]        HOLOCAUST INSURANCE RESTITUTION                        311



not the payment of claims.83 Therefore, it did not attempt to
regulate the actions of foreign entities as prohibited by the
Commerce Clause.84 The Ninth Circuit also disagreed that
HVIRA intruded “into the field of foreign affairs which the
Constitution entrusts to the President and Congress.”85
Because none of the insurers constituted a foreign
government, all of them did business in California, and
HVIRA did not target companies of any specific country
(rather, only a certain type of transaction), the court found no
constitutional overreaching based on the “foreign affairs”
argument.86 However, the Ninth Circuit, citing the Florida
court’s decision, did leave the injunction in place pending
investigation into due process challenge which the district
court had not reached in its initial decision.87
    On remand, the District Court found HVIRA to be in
violation of due process because it failed to provide for a
meaningful hearing before allowing the insurance
commissioner to revoke the licenses of non-compliant
insurers.88 However, in July 2002, the Ninth Circuit
overturned the trial court on appeal, so the California statute
may yet pass constitutional muster.89 The insurers have
applied for certiorari to the Supreme Court.
    Another recent development in the legislative arena also
provides a modicum of hope to frustrated claimants. In
August 2001, Representative Henry Waxman of Los Angeles
introduced a congressional bill calling for the National

        83
             Gerling Global Reins. Corp. v. Low, 240 F.3d 739, 745 (9th
Cir., 2001).
          84
             Id.
          85
             Id. at 752.
          86
             Id. at 753.
          87
             Id. at 753-54.
          88
             Gerling Global Reins. Corp. v. Low, 2001 U.S. Dist. LEXIS
16072, at *33-34 (E.D. Cal. Oct. 2, 2001).
          89
             Gerling Global Reins. Corp. of America v. Low, 296 F.3d 832
(9th Cir. July 15, 2002).
312               NEW ENG. J. INT’L & COMP. L.                [Vol. 9:1


Archives to establish a “Holocaust insurance registry.”90 If
passed, the bill would require insurers to provide a complete
listing of the names of the original holders of all unpaid
Holocaust-era policies “in an electronic format” before a
specified date.91 The bill is currently in committee.92

      C. Negotiations

    The international and broad-based nature of this issue
raises an obvious question with respect to negotiations: who
exactly should negotiate with whom? The question has
resulted in several different answers. One insurer negotiated
a private settlement with the State of Israel.93 Another group
of insurers negotiated with Jewish groups in their own
country and with the government of the State of California.94
An international commission was created for collective
negotiations between a wide range of institutions.95 And
finally, the governments and insurers of Germany and
Austria negotiated with international coalitions led by the
United States.96 These overlapping and sometimes
competing negotiations elicited widely disparate results.

      1. Israeli Negotiations with Generali

    Generali was and remains one of the primary targets for
restitution efforts for two reasons. First, due to its prevalence
in Eastern Europe,97 Generali is believed to hold one of the
         90
           Henry Weinstein, Bill May Help Beneficiaries Settle
Holocaust-Era Claims, L.A. TIMES, Aug. 2, 2001, at A9.
        91
           Holocaust Victims Insurance Relief Act of 2001, H.R. 2693,
107th Cong. (2001).
        92
           2001 Bill Tracking H.R. 2693 (LEXIS Nov. 17, 2001).
        93
           See discussion infra Part III.C(1).
        94
           See discussion infra Part III.C(2).
        95
           See discussion infra Part III.C(3).
        96
           See discussion infra Part III.C(4).
        97
           See discussion supra note 17.
2003]        HOLOCAUST INSURANCE RESTITUTION                    313



largest numbers of unpaid claims of all the European
insurers, estimated at around 340,000.98 Second, in 1997
Generali acquired the Israeli insurance company Migdal, the
largest insurer in the Jewish State.99 At the time of the
acquisition, the Israeli Knesset (Parliament) threatened to
freeze the sale unless some compensation was made.100 This
resulted in the establishment of a $12 million fund that was
considered by most to be embarrassingly short of Generali’s
estimated responsibility.101 Further, the fund seems to have
been initially mismanaged.102 In its first three years, only 100
of 1,200 claims submitted to it were actually processed.103 In
addition, there were allegations that the fund’s board, who
were supposed to have been volunteers recompensed only
for actual expenses, were instead receiving salaries from
Generali.104 Following public outcry, however, the fund
seems to be operating more effectively, and by July 2001 had
paid out $8,530,572 to former policyholders now living in
Israel.105

    2. Independent Settlements with Dutch Insurers

    The Netherlands seems to have been unique among
European nations in its efficient handling of insurance
restitution immediately following the war. Although the
        98
           Eastern Blockage, supra note 49.
        99
           Generali Insurance Stonewalling on Holocaust Insurance
Payments, ISRAEL BUS. TODAY, Nov. 15, 1998.
        100
            American Pressure Works, ISRAEL BUS.TODAY, Sept. 15,
1998.
        101
            Id.
        102
            Questions Arise as Generali Begins Running Holocaust
Fund, HA’ARETZ DAILY NEWSP., LTD (Tel Aviv), June 6, 2001 (available
in WestLaw at: 2001 WL 21429730).
        103
            Id.
        104
            Id.
        105
            Generali Payments to Holocaust Claimants Reach $8.5m,
JERUSALEM POST, July 5, 2001, at 05.
314               NEW ENG. J. INT’L & COMP. L.                  [Vol. 9:1


Dutch insurance companies were at first reticent to process
the high volume of claims, the Dutch courts showed them
little sympathy, consistently siding with the claimants.106 As
a result, approximately ninety-eight percent of the Dutch
policies affected by the Holocaust had been either reinstated
to survivors or paid out to heirs and beneficiaries by 1955.107
     Nevertheless, the Dutch government began a massive
investigation in 1997, which by 1999 had affirmed that
Dutch insurance policies (unlike other types of assets) had
been systematically restored to their rightful owners.108
Although acknowledging a few possible loopholes, the
investigators found only 750 unpaid policies among the
records of some three hundred Dutch insurance firms.109 At
the close of this investigation, the Dutch Association of
Insurers signed an agreement with the Central Jewish Board
of Holland in November 1999, requiring twenty million
Guilder (approximately $8.2 million) to be set aside by its
member firms for any possible individual claimants.110 The
agreement provided that “everyone with a reasonable claim
[would] be honored with twenty-two times the value of the
policy,”111 to account for interest and inflation over the past
sixty years. The insurers also agreed to contribute another
twenty-five million Guilder (approximately $10.2 million)
into a general fund for survivors, and to build a memorial.112

        106
             Central Jewish Board/Dutch Assn. of Insurers, Settlement of
WWII Insurance Assets (Feb. 2000), available at: http://www.stichting-
sjoa.nl/engPers.html (accessed Nov. 11, 2001) [hereinafter Central
Jewish Board/Dutch Assn. of Insurers].
         107
             Id.
         108
             Id.
         109
             Id.
         110
             Marilyn Henry, Dutch Jews Reach Holocaust Insurance
Policy Deal, JERUSALEM POST, Nov. 10, 1999, at 2.
         111
             Marilyn Henry, Dutch Insurance Giant to Settle Holocaust
Claims, JERUSALEM POST, Dec. 3, 1999, at 3A.
         112
             Central Jewish Board/Dutch Assn. of Insurers, supra note
106.
2003]         HOLOCAUST INSURANCE RESTITUTION                      315



Although at last report, the Dutch fund had paid out only 44
claims for a total of 750,000 Guilder (approximately
$301,026),113 at least one survivor described the fund’s
claims procedure as “very efficient.”114
    Only a few weeks after the agreement with the Dutch
Jewish community, Aegon, one of the largest of the Dutch
firms, also agreed to establish a $1.2 million humanitarian
fund for Holocaust survivors in California.115 Two other
Dutch companies later joined this fund, bringing the total
contribution to $4.2 million.116 Unfortunately, like the
Israeli-Generali fund, the California Humanitarian Fund for
Holocaust Survivors (CHFHS) also did not produce
immediate results.117 Due to a political scandal involving
California insurance commissioner Chuck Quackenbush,118
the money was not even collected from the Dutch companies
until May 2001.119 Unlike the Israeli fund, however, the
CHFHS is to be administered strictly through charitable
organizations: of the twelve-member volunteer board of
directors, eight are survivors themselves.120 In addition, the
        113
              Central Jewish Board/Dutch Assn. of Insurers, The Dutch
Central Jewish Board and the Dutch Association of Insurers Reach
Agreement on War Policies, at http://www.stichting-sjoa.nl/engPers.html
(accessed Nov. 11, 2001).
          114
              Dutch Settlement, JEWISH J. OF GREATER L.A., Feb. 16,
2001, at http://www.jewishjournal.com/home/print.php3?id=6501.
          115
              Id. See also Henry, supra note 110, at 2.
          116
              Wendy Thermos, First Holocaust Payout Received, L.A.
TIMES, May 11, 2001, at sec. 2,5.
          117
              Tom Tugend, End in Sight, JEWISH J. OF GREATER L.A., Nov.
3, 2000, at http://www.jewishjournal.com/home/print.php3?id=2314.
          118
              Id.
          119
              Jewish Community Found., Jewish Community Foundation
to Manage $4.2 Million Contribution from Dutch Insurance Companies
at http://www.jewishfoundationla.org/news_5-10-2001.html (accessed
Nov. 11, 2001). [hereinafter Jewish Community Foundation].
          120
              Tom Tugend, Fund For Survivors, (May 18, 2001) at
http://www.jewishjournal.com/home/print.php3?id=6909 (accessed Nov.
11, 2001).
316               NEW ENG. J. INT’L & COMP. L.                 [Vol. 9:1


financial management and distributions are being handled
without fees by the Jewish Community Foundation in Los
Angeles.121 They expect that the distribution process should
take from a year to eighteen months, with completion by the
end of 2002.122

      3. American Negotiators and the International
         Commission on Holocaust Era Insurance Claims

    In the fall of 1997, the National Association of Insurance
Commissioners (NAIC), primarily at the insistence of
Washington State Commissioner Deborah Senn and New
York State Superintendent of Insurance Neil Levin, set up an
internal Holocaust Insurance Issues Working Group, of
which twenty-five states’ commissioners became
members.123 This working group undertook considerable
research on the issue, including holding public forums
throughout the country in which they interviewed hundreds
of Holocaust survivors regarding their insurance claims and
how they had been handled by insurers.124 Their work led to
the creation in October 1998 of an international commission
to oversee research and restitution of the insurance claims,
known as the International Commission on Holocaust Era
Insurance Claims (ICHEIC).125
    Although its membership has fluctuated over time,
ICHEIC negotiators include representatives of several state

         121
              Jewish Community Foundation, supra note 119.
         122
              Id.
          123
              Nathaniel S. Shapo, Prepared Testimony of Nathaniel S.
Shapo, Director, Illinois Department of Insurance, Before the House
Committee on Government Reform, FED. NEWS SERV., Nov. 8, 2001. Neil
Levin, sadly, was himself a victim of the September 11, 2001 terror
attack at the World Trade Center. Id.
          124
              Id.
          125
              Tom Tugend, Survivors Get Short Shrift, (May 25, 2001), at
http://www.jewishjournal.com/home/print.php3?id=6967 (accessed Nov.
11, 2001).
2003]         HOLOCAUST INSURANCE RESTITUTION                     317



insurance commissioners, five major European insurance
carriers, the governments of five countries, and some half
dozen international Jewish organizations.126 The stated goals
of ICHEIC, according to their own publicity materials,
include the research and publication of information relating
to unpaid policies, the creation of a fair and expeditious
method of processing claims against those policies, and the
negotiation of humanitarian aid contributions with respect to
undiscoverable policies or those issued to persons who were
not survived by living heirs.127
    Nearly from its inception, however, many have
questioned ICHEIC’s ability to settle these claims fairly and
efficiently. Although the insurer members initially
contributed $100 million to the ICHEIC fund (of which $10
million was immediately earmarked for “operational
expenses”),128 the bulk of these funds remain in escrow three
years later. Debates over the valuation of policies raged for
seventeen months, with German insurance giant Allianz
refusing to pay more than 1.7 times the face value of the
policies, far less than the twenty-two-times valuation under
the earlier Dutch agreement.129 The deadlock was broken by
commission chairman Lawrence Eagleburger’s insistence on
approximately ten-times the face value amount.130 An
official agreement to launch the claims process was finally

        126
             See Alfonse D’Amato, Cong. Press Release, D’Amato
Praises Formation of Commission to Look Into Holocaust Insurance
Claims, (Apr. 8, 1998) (on file Fed. Doc. Clearing House).
         127
             ICHEIC, An Explanation Of the Claims Resolution Process:
Overview and Description, at http://www.icheic.org/eng/outreach.html
(accessed Nov. 13, 2001).
         128
             Henry Weinstein, Hope Raised for Holocaust Claim Payouts,
L.A. TIMES, Apr. 14, 1999, at A3.
         129
             European Firms Reach Agreement on Paying Jewish
Insurance Policies, AGENCE FRANCE PRESSE (N.Y.), Aug. 10, 1999.
         130
             Meg Fletcher, Holocaust-Era Claims Formula Draws
Concern, BUS. INS., Sept. 6, 1999, at 19.
318               NEW ENG. J. INT’L & COMP. L.                 [Vol. 9:1


reached in February 2000, placing a deadline of two years on
the submission of claims.131 However, that agreement has
not produced noticeable results.
    One of the major stumbling blocks in survivors’ pursuit
of claims is that approximately eighty percent of claimants
do not know which insurer held their relatives’ policies.132
And ICHEIC has been largely unsuccessful in their stated
goal of extracting lists of unpaid policies and the names of
their purchasers from the insurers themselves. By the end of
2000, Generali, for instance, had published on their website
only about 11,000 names of an estimated 340,000.133 During
the negotiation of the Israeli fund, an additional 100,000
names had previously been released by Generali to Yad
Vashem,134 but only on condition that they remain
confidential.135 The German-based conglomerate Allianz has
an even worse record: out of an estimated 1.5 million unpaid
policies, they have released only 380 names.136 And the
Paris-based AXA Group insists that France’s privacy laws
prevent it from releasing any part of their computerized list
of 570,000 policies.137 Although the government of
Czechoslovakia did volunteer a list of 20,000 names,138 the

        131
             Natl. Assn. Ins. Commrs., U.S. and European Regulators
Launch International Effort to Settle Holocaust Victim Insurance Claims,
PR NEWSWIRE, Feb. 15, 2000.
         132
             Off. Ins. Commr., Insurance Commissioner New Steps in
Holocaust Insurance Campaign, PR NEWSWIRE, Apr.17, 2001
[hereinafter Kreidler Announces].
         133
             Netty C. Gross, Questions of Policy, JERUSALEM REPORT,
Dec. 4, 2000, at 20.
         134
             EINSTEIN & KUKOFF, supra note 7, at 76.
         135
             Gross, supra note 133, at 20.
         136
             Henry Weinstein, Holocaust Claims Still Going Unpaid, L.A.
TIMES, July 9, 2001, at A1 [hereinafter Going Unpaid].
         137
             Amanda Levin, Concerns Raised About Holocaust Claims
Program, NATL. UNDERWRITER LIFE & HEALTH-FIN. SERV., Feb. 28,
2000.
         138
             Czechs Hand Over 20,000 Names to Holocaust Insurance
Commission, CTK NATL. NEWSWIRE (Prague), July 23, 1999.
2003]         HOLOCAUST INSURANCE RESTITUTION                       319



total number of policies published by ICHEIC as of April
2001 was only about 45,000, out of at least 2.5 million
known to exist.139
    A further problem with the ICHEIC process revolves
around the fact that the insurers are still the ones who control
the review of claims.140 Despite the ICHEIC promise that
their process would “allow for relaxed standards of proof,”141
some insurers are still rejecting or severely undervaluing
survivors’ claims. Currently, Allianz has processed some
15,000 claims submitted to them through ICHEIC, yet only
four resulted in settlement offers.142 Another insurer,
Winterthur, has processed 6,500 claims and made no offers
at all.143 In total, less than two percent of the 40,000 claims
submitted to insurers through ICHEIC have resulted in
settlement offers.144 Nearly 33,000 more have not even been
processed because the claimant cannot provide policy
numbers and/or the name of the insurer.145 Even those who
have received offers found them ridiculously undervalued:
one claimant was offered only $500 on two life insurance
policies.146


        139
             ICHEIC, The International Commission on Holocaust Era
Insurance Claims Publishes 10,000 Holocaust-Era Policies (April 6,
2001), at http://www.icheic.org/eng/press.html (accessed Nov. 13, 2001).
         140
             ICHEIC, Valuation of Unpaid Policies, at
http://www.icheic.org/eng/claims.html (accessed Nov. 14, 2001).
         141
             Joanne Wojcik, Standards of Proof Will Be Relaxed:
Holocaust Claims Process Coming, BUS. INS., July 26, 1999, at 3.
         142
             Henry A. Waxman, Prepared Statement of Representative
Henry A. Waxman Before the House Committee on Government Reform,
FED. NEWS SERV., Nov. 8, 2001.
         143
             Id.
         144
             Brochu, supra note 14, at A4.
         145
             Id. See also Waxman, supra note 141.
         146
             Holocaust Insurance Body Spends 30 Million to Award 3
Million, DEUTSCHE PRESSE-AGENTUR (L.A.), May 17, 2001 [hereinafter
30 Million].
320              NEW ENG. J. INT’L & COMP. L.              [Vol. 9:1


    To make matters worse, reports this past summer that
over $30 million spent in operating expenses had resulted in
less than $3 million in payouts to survivors sparked the
United States House of Representatives to request a State
Department review of ICHEIC’s operations.147 The member
insurers, who had financed the operations in addition to
providing the escrow fund, began demanding reimbursement
for these expenses.148 Finally, the German insurers, having
concluded a subsequent agreement through their own
government for payment of a lump sum,149 are now insisting
that they are entitled to deduct all of their own administrative
costs associated with the ICHEIC claims – some $76 million
– from the total they are obligated to pay.150
    Thus, with ICHEIC’s agreed two-year claim period
ending in February 2002 (now extended to February
2003),151 tens of thousands of still-unpaid claimants have
grown increasingly worried that as with the New York suit,
nothing at all will have been accomplished for them by this
commission. As of November 2001, ICHEIC had disbursed
to survivors only $21.9 million of the original $90 million
available to it.152

      4. German Negotiations and the “Berlin Agreements”

   A series of negotiated settlements between the German
and American governments, and between more than 3,000
German companies (including insurers), and a number of
Jewish Organizations, resulted in the creation of the


         147
           Id.
         148
           Going Unpaid, supra note 136, at A1.
       149
           See discussion infra Part III.C(4).
       150
           Claire Wilkinson, Holocaust Claims Taking Too Long,
LLOYD’S LIST INTL., Sept. 12, 2001.
       151
           Kreidler Announces, supra note 132.
       152
           Brochu, supra note 14, at A4.
2003]         HOLOCAUST INSURANCE RESTITUTION                        321



Remembrance, Responsibility, and Future Foundation.153
This foundation, established under the so-called “Berlin
Agreements” finalized in October 2000, provide for the
restitution of a number of different types of assets, including
those of individual insurance claims in a total amount of 200
million Deutschmarks (approximately $90.5 million).154 An
additional 350 million Deutschmarks ($158.3 million) are to
be provided for a humanitarian fund for those who cannot
substantiate their individual insurance claims.155 Although
the German law creating the foundation specifically states
that the insurance monies are to be processed and paid out
through ICHEIC,156 the agreement apparently conflicts with
the previously-established ICHEIC procedures, most notably
in the area of operational expenses.157 Thus, the German
foundation and ICHEIC are currently battling over
implementation procedures, and all the German insurance
claims are “still tied up in knots.”158
    In addition, the German settlements, like the Dutch
agreements before them, purport to prohibit all future legal
claims against any German insurer.159 Unlike the Dutch
agreements, however, these agreements seem to define
“German” to mean any company which operated in any
territory which was previously controlled by the “Third
Reich” government, including those of Germany, Poland,

        153
             Winters v. Assicurazioni Generali S.p.A., No. 98 Civ. 9186
U.S. Dist. LEXIS 18193 **4-5 (S.D.N.Y. Dec. 19, 2000).
         154
             German Econ. Found. Initiative Steering Group, A Law on
the Creation of a Foundation: “Remembrance, Responsibility and
Future”, 8-9 (Oct. 2000) at http://www.stiftungsinitiative.de/ers.html
(accessed Nov. 12, 2001).
         155
             Id.
         156
             Id.
         157
             See discussion infra Part III.C(3).
         158
             Wilkinson, supra note 150.
         159
             Winters v. Assicurazioni Generali S.p.A., No. 98 Civ. 9186
U.S. Dist. LEXIS 18193 **4-5 (S.D.N.Y. Dec. 19, 2000).
322                NEW ENG. J. INT’L & COMP. L.                    [Vol. 9:1


Austria, Czechoslovakia, Lithuania, Ukraine, Denmark,
Norway, Holland, and others.160 The result has been to
drastically hamper alternative restitution efforts against
insurers and governments throughout much of the region at
issue.161

      5. The Austrian Negotiations and Settlement

    Like the Germans, the Austrian government and industry
representatives negotiated a settlement intended to create a
restitution foundation in exchange for immunity from legal
action in the United States.162 This settlement appears to
have been concluded hurriedly in the last days of the Clinton
administration in January 2001.163 Among other things, it
provides for insurance restitution in the maximum amount of
only $25 million – an amount so low that one law firm,
representing some 230 claimants, walked out of the
negotiations even before they were completed.164 In addition,
this settlement required claims to be processed through
ICHEIC, resulting in further negotiations concerning
administrative costs and claims handling procedures as with
the German agreement.165



         160
             Id.
         161
             Id. See also discussion supra, Part III.A, at notes 65-69 (as in
the New York State class-action suit).
         162
             McKenna & Cuneo, L.L.P., Holocaust Survivors, Heirs
Challenge U.S.-Austria Agreement in Lawsuit (June 14, 2001), at
http://www.mckennacuneo.com/articles/article_detail.cfm?467 (accessed
Nov.17, 2001) [hereinafter McKenna].
         163
             Id.
         164
             Id.
         165
             J.D. Bindenagel, Prepared Statement of Ambassador J.D.
Bindenagel, Special Envoy for Holocaust Issues, U.S. Department of
State, Before the House Committee on Government Reform, FED. NEWS
SERV., Nov. 8, 2001.
2003]         HOLOCAUST INSURANCE RESTITUTION                         323



    D. Litigation in California

     Due to frustration with the organized attempts at
insurance restitution, some claimants have returned to the
courts to seek justice in their claims against recalcitrant
insurers. Although California’s HVIRA statute was held to
be a violation of due process, dicta in Gerling Global v. Low
indicated that these insurers would be subject to jurisdiction
under the “minimum contacts” analysis.166 Thus, more recent
litigation has been brought in California courts.

    1. Suits Brought by Individual Plaintiffs

     The landmark individual case was filed in the United
States District Court in Los Angeles, California, against
Italian insurer Generali, by the family of Hungarian
winemaker Mor Stern, killed at Auschwitz.167 Consistent
with its previous actions, Generali contested jurisdiction, but
Judge Florence-Marie Cooper disagreed on the basis that
Generali does significant business in California.168 Although
the Sterns eventually settled the case for a reported $1.25
million,169 the Los Angeles Court’s holding on the
jurisdiction issue has provided new hope to other claimants.
More than 30 other plaintiffs have filed suit in California,170
at least three of which have also settled for confidential
amounts.



        166
             Gerling Global Reins. Corp. v. Low, No. Civ. S-00-0506
U.S. Dist. LEXIS 16072, at *25-26 (E.D. Cal. Oct. 2, 2001).
         167
             Court Ruling Boosts Private Holocaust Lawsuits, N.Y.
TIMES, Jan. 31, 1999, at sec. 1, 18 [hereinafter Court Ruling].
         168
             Id.
         169
             Generali Reportedly Pays 1.25 Mln USD Settlement to
Family of Auschwitz Victim, AFX EUROPE, Nov. 25, 1999.
         170
             Court Ruling, supra note 167, at 18.
324               NEW ENG. J. INT’L & COMP. L.                [Vol. 9:1


      2. Class-Action Litigation

     In the latest development, two class-action suits have
been brought against negotiated settlements involving
ICHEIC. The first suit complains of undervalued and
deceptively presented settlement offers made by Generali
under the auspices of ICHEIC. The second, more audacious
suit, complains that the entire Austrian settlement agreement
is illegal.

      a. Haberfeld v. Assicurazioni Generali

    Felicia Haberfeld, the woman who had received the offer
of only $500 for her two claims processed by ICHEIC,171 has
become the named plaintiff in a California class-action suit
against Generali. Filed May 16, 2001, the suit charges that
Generali is fraudulently attempting to deceive claimants into
giving up their legal rights under California law by sending
them a form letter which “creates the false impression that
ICHEIC has some type of governmental status, and provides
an exclusive remedy for the resolution” of their claims.172
The complaint pointedly states that ICHEIC is a voluntary,
private, and secretive organization which is entirely funded
by insurers and thus can do nothing without their
approval.173 Haberfeld is requesting an injunction to prevent
Generali from contacting survivors with undervalued
settlement offers, to nullify any similar offers already
accepted through ICHEIC, and to make public the results of



         171
             30 Million, supra note 146.
         172
             Press Release, Shernoff, Bidart & Darras, Haberfeld v.
Assicurazioni Generali, S.p.A., No. BC250565 (May 16, 2001), at
http://www.shernoff.com/news/pressreleases/haberfeld.php (accessed
Nov. 17, 2001).
         173
             Id. ¶¶ 30, 35.
2003]         HOLOCAUST INSURANCE RESTITUTION                        325



the prior individual cases (such as the Stern family’s) in
California.174

    b. Anderman v. Fed. Republic of Austria

    McKenna & Cuneo, the law firm that refused to sign the
Austrian agreement on behalf of its clients, filed suit against
the state less than a month later.175 McKenna’s 205-page
complaint is in itself a staggering testament to the magnitude
of the financial wrongs committed during the Holocaust,
detailing with succinct precision the assets appropriated from
each and every one of the suit’s two hundred and forty-one
named plaintiffs and/or their deceased family members.176
Between them, the named plaintiffs were able to document
two hundred and forty-four insurance policies, with values in
1938 exceeding 622,000 Reichsmarks (the currency of the
Nazi regime).177
    The complaint pleads twelve causes of action under
United States, Austrian, International, and California State
laws, including conversion, breach of contract, unjust
enrichment, breach of fiduciary duties, violation of the Alien
Tort Claims Act, violation of California’s HVIRA and
related statutes, and violation of the 1955 Multilateral State
Treaty that created the current Austrian government.178 Not
only does the complaint demand disclosure and restitution

        174
             Press Release, Shernoff, Bidart & Darras, Generali Accused
of Deceiving Holocaust Survivors in Class Action Lawsuit: Injunction
Sought to Stop Unfair Insurance Practice (May 16, 2001) at
http://www.shernoff.com/news/pressreleases/051601pr.php (accessed
Nov. 17, 2001).
         175
             McKenna, supra note 162.
         176
             Compl. at 1-4, 16-177, Anderman v. Fed. Republic of
Austria, No. CV 01-01769 FMC (C.D. Cal. June 14, 2001).
         177
             Id. A number of the policies could not be valued, or were
valued in a different currency of the time. Id.
         178
             Id. at 189-201.
326               NEW ENG. J. INT’L & COMP. L.               [Vol. 9:1


(with interest), but it also claims punitive damages, damages
for emotional distress, disgorgement of all profits earned
from the funds during the past sixty or so years, declarations
that the Austrian settlement and ICHEIC do not relieve the
defendants of legal liability, and of course, attorney’s fees.179
No rulings have yet been made on the case.

      E. Multi-District Litigation

     As this article was going to press, the original New York
class action suit that began the drive for insurance restitution
was suddenly revived. In a series of procedural moves, the
four remaining insurer defendants convinced the various
courts involved to consolidate all the new California
litigation with the New York suit as Multi-District Litigation
located in New York. Following the consolidation and
transfer, the insurers then moved to dismiss on the theory of
forum non coveniens, arguing that either 1) ICHEIC was the
proper forum for the resolution of these claims, or 2) the
claims should be litigated in the various European countries
where the contracts arose. On September 25, 2002, Judge
Michael Mukasey wrote a lengthy decision denying these
claims. Most importantly, his decision makes clear that
ICHEIC, at least from a judicial standpoint, is an utterly
“inadequate forum” for the resolution of these policies.180 It
looks as if this seemingly stalled suit is about to become very
active again, after an almost three-year hiatus. Further, it
may mean the end of ICHEIC as an accepted process for
resolution. This would be a blessing for the restitution
movement, since ICHEIC has been riddled with difficulties
since its inception.


         179
            Id. at 202-203.
         180
            In Re: Assicurazioni Generali SpA Holocaust Insurance
Litigation, MDL 1374, M21-89 (E. Dist N.Y. Sept, 25, 2002) (available
at 2002 WL 31133027).
2003]          HOLOCAUST INSURANCE RESTITUTION               327



   F. Comparison of the Various Restitution Methods

    Once one has examined the details of the different
approaches that have been utilized in the attempt to achieve
restitution of insurance assets, a number of factors for
comparison become apparent. Among the most important
appear to be: 1) the level of disclosure of essential
information (i.e., lists of names); 2) the processes employed
for claims handling and disbursement; 3) the monetary
amounts pledged in restitution; 4) comparison of amounts
pledged to actual estimated losses; 5) comparison of amounts
pledged to those achieved in restitution efforts for other
types of assets; and finally, 6) the amount actually received
by claimants. Although not all of these factors apply to
every method, this section will synthesize the foregoing
analysis, highlighting the successes and failures of the
current efforts.

   1. Disclosure of Names

    The important issue of extracting from insurers the
names and policy numbers of some 2.5 million policies, so
crucial to effective restitution, appears to be one of the worst
failures of all of the methods employed thus far. The New
York class-action suit did not directly address the issue at all.
Presumably, the attorneys expected to be able to demand
discovery on the behalf of unnamed plaintiffs, but the case
has not been allowed to progress that far.181 American
insurance statutes requiring disclosure have not withstood
Constitutional scrutiny, and thus cannot be enforced by the
states that passed them.182 The various negotiated settlements
have not been significantly more successful. The 100,000
names produced by Generali in conjunction with the Israeli
        181
              See discussion supra notes 59-72.
        182
              See discussion supra notes 80, 88.
328               NEW ENG. J. INT’L & COMP. L.              [Vol. 9:1


fund remain confidential, inaccessible to individual
claimants.183 The Dutch, German, and Austrian settlements
did not require disclosure at all.184 Ironically, ICHEIC has
actually been the most successful in this endeavor, with their
pitiful list of 45,000 names – less than two percent of the
estimated total.185 Currently, the only hope for access to any
significant portion of this information rests in the potential
outcome of the Anderman case against the Austrian
settlement, which demands disclosure from the Austrian
defendants.186 However, there is still no means in place, or
even proposed, for survivors of any other country to access
insurers’ records regarding their claims.

      2. Claims Processing and Disbursement

    The issue of how claims should be processed and
disbursed, and by whom, has been a major source of
contention amongst all of the involved parties throughout the
restitution efforts. Clearly, the most effective disbursements
have been the direct settlements between Generali and the
Stern family and other California individual plaintiffs.187
However, it is just as clearly impractical for every one of the
700,000 survivors to sue individually as the Sterns did.
Thus, it is appropriate to compare the procedures in the
larger settlements, in order to determine which methods may
be the most successful in the future.
    The two main problems that have developed in the
settlement processes are 1) who controls the approval or
disapproval of claims, and 2) how administrative costs
should be handled. The hearings currently being held by the
House Committee on Government Reform are making it

         183
             See discussion supra note 134.
         184
             See discussion supra notes 105-133, 152-164.
         185
             See discussion supra note 138.
         186
             See discussion supra note 178.
         187
             See discussion supra note 168.
2003]         HOLOCAUST INSURANCE RESTITUTION              329



painfully clear that ICHEIC’s procedures for both are almost
entirely unworkable.188 Because ICHEIC leaves ultimate
approval control in the hands of insurers, they are free to
continue rejecting the same valid claims they have been
rejecting for six decades, quietly disregarding the processing
standards they themselves negotiated for almost a year and a
half.189 Further, ICHEIC’s high administrative costs, fully
funded by those same insurers, leave the commission
beholden to the goodwill of these companies and therefore
not in a position to enforce the standards of the original
agreement.190 Also, most recently, the arguments over
administrative costs are now interfering with the processing
of claims under the German and Austrian agreements, which
carry differing terms than those negotiated at ICHEIC’s
inception.191 As a result, ICHEIC has been able to disburse,
at most, less than eleven percent of its available funds to
eligible claimants.192
     In contrast, the Israeli-Generali fund appears to have
been somewhat more effective. Although this fund also
initially had some difficulties concerning administrative
expenses, its independent board of directors retained
exclusive control over the claims approval process.193
Consequently, it has achieved a far higher claims approval
rate than ICHEIC, so that more than two-thirds of the
original fund has now been disbursed to its intended
recipients.194
     Finally, it is worth examining the California
humanitarian fund. Although this fund does not actually
engage in determining the validity of claims (it is strictly
        188
            See discussion supra notes 139-149.
        189
            See discussion supra note 128.
        190
            See discussion supra notes 146-149.
        191
            See discussion supra notes 148-149.
        192
            See discussion supra note 151.
        193
            See discussion supra note 103.
        194
            See discussion supra note 104.
330                  NEW ENG. J. INT’L & COMP. L.        [Vol. 9:1


need-based), and is too new to have actually disbursed any
monies, its procedures may serve as a model for future
efforts.195 Not only does a board of independent volunteers
control it, but all its administrative costs are being donated
by the Jewish Foundation.196 For the larger funds, it would
likely seem unreasonable for the extensive costs to be
absorbed by the same community which is intended to be
compensated, but it is certainly laudable that the entirety of
the monies in the California fund will go directly to actual
Holocaust survivors rather than to administrators and other
employees.
    In sum, the future goals regarding this issue should
revolve around finding an independent, objective method for
investigating claims, such as the Israeli process, that can be
administered fairly with respect to all parties. This should be
combined with a cost-effective administration process,
perhaps involving a higher level of volunteer or donated
services such as with the California fund, which will not
leave the process subject to the influence of whoever is
paying the bills.

      3. Amounts Pledged: How These Amounts Compare to
         Estimated Losses and Other Restitution Efforts

    Simple addition of the figures achieved through the
combined methods results in a rather unsatisfactory picture.
To summarize briefly, the amounts from each attempt to
restitute individual claims are as follows: 1) the New York
suit, nothing at all; 2) Legislation, also nothing; 3) the Israeli
fund, $12 million; 4) the Dutch fund, $8.2 million; 5)
ICHEIC, $90 million; 6) the German fund, $90.5 million; 7)
the Austrian fund, $25 million; and finally, 8) the Stern
family settlement, $1.25 million. The net result totals
roughly $227 million, plus the amounts of the three
         195
               See discussion supra note 121.
         196
               See discussion supra notes 119-120.
2003]         HOLOCAUST INSURANCE RESTITUTION                         331



undisclosed private California suits.197 In addition,
humanitarian “general” funds, not intended for those who
have valid individual claims, are as follows: 1) the Dutch
fund, $10.2 million; 2) the California fund, $4.2 million; and
3) the German fund, $158.3 million.198 Thus, the
humanitarian funds provide another $172.7 million, bringing
the grand total for all insurance restitution to approximately
$400 million, depending on exchange rates.
     While $400 million may at first glance seem to be a
rather large number, it pales in comparison to the estimated
actual losses, and to the results of restitution efforts
regarding other types of Holocaust-era assets. It is a mere
sixteen percent of the median-range estimate of $2.5 billion
in lost insurance assets.199 It is roughly a third of the $1.25
billion recovered from the Swiss banks,200 and it is a pathetic
eight percent of the $5 billion German slave-labor
settlement.201 In total, the restitution efforts for insurance
assets have accounted for less than seven percent of all
Holocaust-era restitution achieved to date. More importantly,
it has failed to achieve restitution of nearly eighty-five
percent of the actual insurance assets owed to survivors and
their heirs, to say nothing of the profits that have been
earned, over the past six decades, by the wrongful holders of
those assets. Based on these numbers alone, it is reasonable
to conclude that the entire process of insurance restitution
has failed the larger part of its goals.




        197
            See discussion supra notes 72, 90, 109, 127, 153, 162, 168.
        198
            See discussion supra notes 111, 115, 159.
        199
            See discussion supra note 49.
        200
            See discussion supra note 51.
        201
            See discussion supra note 53.
332                  NEW ENG. J. INT’L & COMP. L.                  [Vol. 9:1


      4. Amounts Actually Paid to Claimants

     Sadly, when one examines the amounts actually received
by the survivors themselves, the picture only becomes
grimmer. To summarize briefly, the amounts from each
attempt which have actually been paid out to survivors are as
follows: 1) the New York suit, nothing at all; 2) Legislation,
also nothing; 3) the Israeli fund, $8,530,572; 4) the Dutch
fund, $301,026; 5) ICHEIC, $21.9 million; 6) the German
fund, nothing; 7) the Austrian fund, also nothing; and finally,
8) the Stern family settlement, $1.25 million.202 Thus, the
total amount that has actually reached its intended recipients
is less than $32 million, or approximately 1.3 percent of the
money that rightfully belongs to them.


                             IV. CONCLUSION

    In the words of Elan Steinberg of the World Jewish
Congress, “[w]hat we are really talking about is . . . the
greatest robbery in history.”203 And there is no other
conclusion that can possibly be drawn than that the robbers
continue to go unpunished for their crimes. The restitution
efforts thus far have resulted in a mere pittance of what could
possibly be considered just compensation. To add insult to
injury, the vast majority of what little has been achieved
remains tied up in bureaucratic red tape instead of being
distributed to its rightful owners.
    The brightest promise for the future seems to rest in the
two class-action suits. The most promising is the
reawakening of the New York (now Multi-District) case. The
discrediting of ICHEIC and a more forceful litigation stance
could do much to frighten or embarrass the insurers into
offering more acceptable settlements. Alternatively, if the
         202
               See discussion supra notes 72, 104, 112, 151, 157, 164, 168.
         203
               TORONTO STAR, supra note 43.
2003]      HOLOCAUST INSURANCE RESTITUTION                  333



Anderman case against the Austrian settlement can succeed
in its demand for complete disclosure of policy information,
plus an impartial assessment of the true value of the assets
stolen, then perhaps justice (at least for the Austrian
survivors) may finally be done. In addition, the pending
congressional bill calling for a national Holocaust insurance
registry, if passed, would help enormously. But for now,
survivors for the most part remain as they have been for the
past sixty years: unpaid. At this point, the only thing that is
certain is that the story of Holocaust insurance restitution is
far from over.

				
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